Frye v. SCI Benner Medical Dept. et al
MEMORANDUM (Order to follow as separate docket entry) re: 20 MOTION to Dismiss filed by Doll. (See memo for complete details.) Signed by Chief Judge Christopher C. Conner on 8/10/17. (ki)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
SCI BENNER MEDICAL DEPT.,
CIVIL NO. 1:16-CV-1538
(Chief Judge Conner)
Plaintiff Alexander Frye (“Frye”), an inmate confined at the State
Correctional Institute at Benner Township (“SCI-Benner”), initiated the instant
civil rights action pursuant to 42 U.S.C. § 1983. (Doc. 1). The remaining defendant
is Dr. Christina Doll. Presently pending before the court is defendant‟s motion to
dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 20). Despite
being directed to file a brief in opposition to defendant‟s motion, Frye failed to
oppose the motion. (See Doc. 22). Consequently, the motion is deemed unopposed
and ripe for disposition. See L.R. 7.6 (“Any party opposing any motion . . . shall file
a brief in opposition . . . [or] shall be deemed not to oppose such motion”); see also
(Doc. 22) (advising Frye that failure to file a brief in opposition to defendant‟s
motion would result in the motion being deemed unopposed). For the reasons set
forth below, the court will grant defendant‟s motion.
Allegations of the Complaint
In the complaint Frye alleges:
During the years of 2015 and 2016 I was seen by several nurses,
physician assistants, and other‟s [sic] in medical trying to explain to
them that I have a history of recurrent seizure disorder, and asthma
plus bilateral eye surgeries. The SCI Benner Medical Dept. is involved
because after being seen and reviewed over 50, or more times they
have failed to review my medical files. I have Uniontown hospital
records confirming my seizure and medical history and still they are
refusing to provide me the correct medical treatment which is
classified as medical malpractice.
(Doc. 1, at 2-3).1 Frye alleges defendant Doll “is involved because I wrote and asked
him [sic] to review my medical history, and got no response[.] I should be on
seizure meds and other past previous medications but he [sic] refuses to review my
medical history or even treat my disorders.” (Id. at 3).
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the
dismissal of complaints that fail to state a claim upon which relief can be granted.
FED. R. CIV. P. 12(b)(6). When ruling on a motion to dismiss under Rule 12(b)(6),
the court must “accept as true all [factual] allegations in the complaint and all
reasonable inferences that can be drawn therefrom, and view them in the light most
favorable to the plaintiff.” Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007)
(quoting Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005)). Although the court is
generally limited in its review to the facts contained in the complaint, it “may also
consider matters of public record, orders, exhibits attached to the complaint and
On September 13, 2016, the court dismissed SCI-Benner Medical
Department as a defendant in this action. (See Doc. 14).
items appearing in the record of the case.” Oshiver v. Levin, Fishbein, Sedran &
Berman, 38 F.3d 1380, 1384 n. 2 (3d Cir. 1994); see also In re Burlington Coat
Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).
Federal notice and pleading rules require the complaint to provide “the
defendant notice of what the . . . claim is and the grounds upon which it rests.”
Phillips v. Cty. of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007)). To test the sufficiency of the complaint in the
face of a Rule 12(b)(6) motion, the court must conduct a three-step inquiry. See
Santiago v. Warminster Twp., 629 F.3d 121, 130-31 (3d Cir. 2010). In the first step,
“the court must „tak[e] note of the elements a plaintiff must plead to state a claim.‟”
Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)). Next, the factual and legal
elements of a claim should be separated; well-pleaded facts must be accepted as
true, while mere legal conclusions may be disregarded. Id.; see also Fowler v.
UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). Once the well-pleaded factual
allegations have been isolated, the court must determine whether they are sufficient
to show a “plausible claim for relief.” Iqbal, 556 U.S. at 679 (citing Twombly, 550
U.S. at 556); Twombly, 550 U.S. at 555 (requiring plaintiffs to allege facts sufficient
to “raise a right to relief above the speculative level”). A claim “has facial
plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678.
Section 1983 of Title 42 of the United States Code offers private citizens a
cause of action for violations of federal law by state officials. See 42 U.S.C. § 1983.
The statute provides, in pertinent part, as follows:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress. . . .
Id.; see also Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002); Kneipp v. Tedder, 95
F.3d 1199, 1204 (3d Cir. 1996). To state a claim under § 1983, a plaintiff must allege
“the violation of a right secured by the Constitution and laws of the United States,
and must show that the alleged deprivation was committed by a person acting
under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).
Defendant seeks dismissal of the complaint based on Frye‟s failure to raise
the claims against her in the prison‟s administrative review process prior to
proceeding in federal court.2 Under the Prison Litigation Reform Act of 1996 (the
“PLRA”), a prisoner is required to pursue all avenues of relief available within the
prison‟s grievance system before bringing a federal civil rights action concerning
prison conditions. See 42 U.S.C. § 1997e(a); Booth v. Churner, 206 F.3d 289, 291 (3d
Cir. 2000). This “exhaustion requirement applies to all inmate suits about prison
life, whether they involve general circumstances or particular episodes, and
whether they allege excessive force or some other wrong.” Porter v. Nussle, 534
U.S. 516, 532 (2002). It has been made clear that the exhaustion requirement is
mandatory. See Williams v. Beard, 482 F.3d 637, 639 (3d Cir. 2007); see also Booth,
532 U.S. at 741 (holding that the exhaustion requirement of the PLRA applies to
grievance procedures “regardless of the relief offered through administrative
procedures”); Nyhuis v. Reno, 204 F.3d 65, 67 (3d Cir. 2000) (same). “[I]t is beyond
the power of [any] court . . . to excuse compliance with the exhaustion
requirement.” Nyhuis, 204 F.3d at 73 (quoting Beeson v. Fishkill Corr. Facility, 28
F. Supp.2d 884, 894-95 (S.D.N.Y. 1998).
In Spruill v. Gillis, 372 F.3d 218, 230 (3d Cir. 2004), the United States Court
of Appeals for the Third Circuit addressed the issue of whether the defendants in
Spruill properly identified their motion as one for dismissal pursuant to Federal
Rule of Civil Procedure 12(b)(6). The court noted that “[g]iven that the exhaustion
issue turns on the indisputably authentic documents related to Spruill‟s grievances,
we hold that we may also consider these without converting it to a motion for
summary judgment.” Id. at 223 (citing Steele v. Fed. Bureau of Prisons, 355 F.3d
1204, 1212 (10th Cir. 2003)). See also Brown v. Croak, 312 F.3d 109, 111 (3d Cir.
2002) (“In appropriate cases, failure to exhaust may be raised as the basis for a
motion to dismiss”); Ray v. Kertes, 285 F.3d 287, 293 n.5 (3d Cir. 2002) (motions to
dismiss may be pursued on failure to exhaust grounds in certain circumstances).
Like the court in Spruill, we will consider the Department of Corrections‟ policies
and inmate grievance records as indisputably authentic documents. See Spruill,
372 F.3d at 223 (suggesting that an inmate‟s grievance records are “indisputably
Courts have also imposed a procedural default component on the exhaustion
requirement, holding that inmates must fully satisfy the administrative
requirements of the inmate grievance process before proceeding into federal court.
Spruill v. Gillis, 372 F.3d 218 (3d Cir. 2004); see also Camp v. Brennan, 219 F.3d 279
(3d Cir. 2000). Inmates who fail to fully, or timely, complete the prison grievance
process, or who fail to identify the named defendants, are barred from subsequently
litigating claims in federal court. See Spruill, 372 F.3d 218. “As for the failure to
identify named defendants on the grievance form, . . . to the extent the identity of a
defendant was „a fact relevant to the claim,‟ Pennsylvania‟s prison grievance policy
mandated that the identification be included in the inmate‟s statement of facts on
the grievance form. And, . . . in the absence of any justifiable excuse, a
Pennsylvania inmate‟s failure to properly identify a defendant constituted a failure
to properly exhaust his administrative remedies under the PLRA.” Williams v.
Pennsylvania Dep‟t of Corr., 146 F. App‟x 554, 557 (3d Cir. 2005) (non-precedential).
An “untimely or otherwise procedurally defective administrative grievance” does
not satisfy the PLRA‟s exhaustion requirement. Woodford v. Ngo, 548 U.S. 81, 83-84
(2006). Thus, the PLRA mandates that inmates “properly” exhaust administrative
remedies before filing suit in federal court. Id. at 92.
The Pennsylvania Department of Corrections has an Inmate Grievance
System which permits any inmate to seek review of problems that may arise during
the course of confinement. See 37 PA. CODE § 93.9(a); PA. DEP‟T OF CORR., No. DCADM 804. After an attempt to resolve any problems informally, an inmate may
submit a written grievance to the Facility‟s Grievance Coordinator for initial review.
This must occur within fifteen days after the events upon which the claims are
based. Within fifteen days of an adverse decision by the Grievance Coordinator, an
inmate may then appeal to the Facility Manager of the institution. Thereafter,
within fifteen days of an adverse decision by the Facility Manager, an inmate may
file a final appeal to the Secretary‟s Office of Inmate Grievances and Appeals
(“SOIGA”). See Booth v. Churner, 206 F.3d 289, 293 n. 2 (3d Cir. 2000) (outlining
Pennsylvania‟s grievance review process). An appeal to final review cannot be
completed unless an inmate complies with all established procedures. An inmate
must exhaust all three levels of review and comply with all procedural requirements
of the grievance review process in order to fully exhaust an issue. See Booth, 206
F.3d at 293 n. 2 (outlining Pennsylvania‟s grievance review process); Ingram v. SCI
Camp Hill, 448 F. App‟x 275, 279 (3d Cir. 2011) (same).
Defendant asserts that Frye fails to allege that he filed any grievances
concerning defendant‟s conduct and, moreover, Frye never appealed any
grievances to Final Review. (Doc. 21, at 3-13). As noted above, the standard used in
determining whether a prisoner has exhausted the administrative process is
whether he complied with the applicable grievance procedures and rules.
In the complaint, Frye claims that he fully exhausted his administrative
remedies, stating: “I wrote to medical dept. several times and they denied me
saying no seizure disorder, also wrote and informed housing unit staff.” (Doc. 1, at
2). However, Michael Bell, Grievance Review Officer for SOIGA, stated: “As part of
my duties as a Grievance Officer, I respond to requests for information directly
related to litigation. In this case I‟ve reviewed inmate #LM-3626, Alexander Frye‟s
grievance history. While Mr. Frye has filed grievances, he has never appealed any
to Final Review.” (Doc. 21-1, at 1).
A review of the institution‟s grievance files confirms that Frye failed to appeal
the relevant grievances to Final Review. During his incarceration at SCI-Benner,
Frye filed a total of thirty-nine (39) grievances. The grievances are summarized as
Grievance No. 639439. Frye submitted a grievance complaining that
he was not paid for a full eight hours he worked. (Doc. 21-2 at 4-8).
Grievance No. 624004: Frye submitted a grievance complaining that he
was not provided with an updated photo ID card. (Doc. 21-2 at 9-14).
Grievance No. 627558: Frye submitted a grievance complaining that he
has not been placed on the barber shop list. (Doc. 21-2 at 15- 16).
Grievance No. 624959: Frye submitted a grievance complaining about
his employment opportunities within the prison. (Doc. 21-2 at 17-18).
Grievance No. 621710: Frye submitted a grievance complaining that he
did not receive the commissary that he ordered. (Doc. 21-2 at 19-21).
Grievance No. 614172: Frye submitted a grievance complaining that he
was “shorted hours” in his work pay. (Doc. 21-2 at 22-23).
Grievance No. 613205: Frye submitted a grievance complaining that
his treatment group meetings were held at an inconvenient time for
him. (Doc. 21-2 at 24-25).
Grievance No. 609090: Frye submitted a grievance complaining that
his seizure disorder had not been properly treated. (Doc. 21-2 at 2627).
Grievance No. 606834: Frye submitted a grievance complaining that
the prison is required him to start his AA/NA meetings over after he
missed a meeting. (Doc. 21-2 at 28-30).
Grievance No. 606766: Frye submitted a grievance complaining about
his employment opportunities within the prison. (Doc. 21-2 at 31-32).
Grievance No. 605367: Frye submitted a grievance complaining that
his inmate account was not credited back the money he was owed by
the DOC for the cost of his glasses. (Doc. 21-2 at 33-34).
Grievance No. 605361: Frye submitted a grievance complaining that
his coat was destroyed in the laundry and demanding that the prison
pay to repair it. (Doc. 21-2 at 35-36).
Grievance No. 592843: Frye submitted a grievance demanding that the
prison pay to replace his glasses that were broken when another
inmate threw a football to him in the yard. (Doc. 21-2 at 37-41).
Grievance No. 591756: Frye submitted a grievance complaining that
his razor was improperly confiscated. (Doc. 21-2 at 42-43).
Grievance No. 591605: Frye submitted a grievance complaining that he
is being prohibited from calling someone because the prison believes
that person has a criminal record. (Doc. 21-2 at 44-45).
Grievance No. 592405: Frye submitted a grievance requesting that a
sergeant be reprimanded for disrespecting inmates. (Doc. 21-2 at 4647).
Grievance No. 587256: Frye submitted a grievance complaining that
money was improperly deducted from his inmate account for court
costs. (Doc. 21-2 at 48-52).
Grievance No. 587258: Frye submitted a grievance complaining that
his laundry arrived late. (Doc. 21-2 at 53-54).
Grievance No. 566574: Frye submitted a grievance complaining about
his work assignment. (Doc. 21-2 at 55-59).
Grievance No. 577992: Frye submitted a grievance complaining that
the prison refused to move him to another block. (Doc. 21-2 at 60- 61).
Grievance No. 569898: Frye submitted a grievance complaining that
although he had paid for his replacement ID, he had not received the
same. (Doc. 21-2 at 62-64).
Grievance No. 569986: Frye submitted a grievance complaining that
his payroll was incorrect. (Doc. 21-2 at 67-69).
Grievance No. 567367: Frye submitted a grievance complaining that
his payroll was incorrect. (Doc. 21-2 at pp. 70-71).
Grievance No. 565456: Frye submitted a grievance complaining that
his requests to speak with his attorney were denied. (Doc. 21-2 at 7274).
Grievance No. 564554: Frye submitted a grievance complaining that
the shift commander failed to follow the yard schedule that day. (Doc.
21-2 at 75-76).
Grievance No. 564544: Frye submitted a grievance complaining that
his mail was being improperly held. (Doc. 21-2 at 77-78).
Grievance No. 564287: Frye submitted a grievance complaining that
his mail was being improperly held. (Doc. 21-2 at 79-80).
Grievance No. 564172: Frye submitted a grievance complaining that
his payroll was incorrect. (Doc. 21-2 at 81-84).
Grievance No. 564172: Frye submitted a grievance complaining that
his payroll was incorrect. (Doc. 21-2 at 85-87).
Grievance No. 564002: Frye submitted a grievance complaining that
the medical department refused to obtain a copy of his medical records
from Uniontown Hospital. (Doc. 21-2 at 88-89).
Grievance No. 562351: Frye submitted a grievance complaining about
his mail being sent to a different block. (Doc. 21-2 at 90-91).
Grievance No. 562120: Frye submitted a grievance complaining that he
was denied yard and a shower by the corrections officer. (Doc. 21-2 at
Grievance No. 561699: Frye submitted a grievance complaining that he
was denied the opportunity to go to school after being put in cell
restriction. (Doc. 21-2 at 94-95).
Grievance No. 556400: Frye submitted a grievance complaining that he
had not been placed on medication for his seizures. (Doc. 21-2 at 9798).
Grievance No. 554859: Frye submitted a grievance complaining that he
had yet to be enrolled in school. (Doc. 21-2 at 99-103).
Grievance No. 554526: Frye submitted a grievance complaining that
money was improperly deducted from his inmate account. (Doc. 21-2
Grievance No. 552111: Frye submitted a grievance complaining that he
had been denied medication for seizures after being diagnosed with
the same at Uniontown Hospital. (Doc. 21-2 at 106-108).
Grievance No. 552110: Frye submitted a grievance complaining that
his previous facility (SCI-Somerset) failed to mail him his commissary
order. (Doc. 21-2 at 09-112).
Grievance No. 551805: Frye submitted a grievance complaining that
the sidewalks had not been properly plowed and salted after a snow
storm. (Doc. 21-2 at 113-114).
(Doc. 21-2, at 4-114).
Frye filed four (4) grievances regarding his medical care at SCI-Benner.
However, he failed to appeal any of these grievances to Final Review. Indeed, Frye
failed to even appeal these grievances to the institution‟s Facility Manager.
In Grievance Number 552111, Frye wrote:
This is my second grievance about I have a seizure disorder[.] [T]hey
can‟t find it in my chart at all[.] Only person who found it was phsy Dr.
Karmodle at SCI SMR. I told SCI Pittsburgh, SCI Camp Hill, SCI
SMR and now here I was diagnosed by Uniontown Hospital with
seizure disorders. Pittsburgh took me off my seizure meds for no
reason. Please look in  all my chart[.] I would like to be seen by
medical without being charge[d] 5.00 dollar medical copay and be
place[d] on bottom tier bottom bunk status[.] I tried everything I could
by Requested slip and sick call slip and the second grievance[,] see
attached sick call dated 2-15-15.
(Doc. 21-2, at 107). On March 9, 2015, Douglas Bopp, Corrections Health Care
Administrator, denied the grievance. In the initial review response, Mr. Bopp
Mr. Frye I read your grievance and reviewed your medical record in
regards to your stated seizure history and I could not find any
documentation confirming it. I attempted to contact your mother
since she is listed as next of kin and she did not answer the phone.
Please sign [up] for sick call (no charge) and discuss your seizure
history. Please give staff the name of the hospital so records can be
retrieved. You have not signed up for sick call here to address this and
sick call is the proper avenue to take to discuss your issues. Your
grievance is denied.
(Doc. 21-2, at 106). Frye did not appeal this grievance.
On March 11, 2015, Frye filed Grievance Number 556400 complaining about
the same issue in Grievance Number 552111. (Doc. 21-2, at 98). On March 13, 2015,
the grievance was rejected on the ground that the issue had already been reviewed
and addressed in prior Grievance Number 552111. (Doc. 21-2, at 97). The Facility
Grievance Coordinator explained:
On 2/19/15 you filed Initial Grievance #552111 indicating that you have
a seizure disorder and while at SCI Pittsburgh, they took you off your
seizure medications for no reason. This Initial Grievance was assigned
to CHCA Bopp who indicated in his Initial Grievance response that he
tried contacting your Next of Kin. He also encouraged you to sign up
for sick call (free of charge) to discuss your seizure disorder. In
accordance with DC-ADM 804, Inmate Grievance System Procedures
Manual Section 1-Grievances & Initial Review A. 16. any grievance
issue that has been previously addressed will not be re-addressed in a
(Doc. 21-2, at 97). Frye failed to appeal this grievance.
On April 22, 2015, Frye filed Grievance Number 564002, pertaining to the
same issues that were already addressed in Grievance Numbers 556400 and 552111.
(Doc. 21-2, at 89). On April 27, 2015, the Facility Grievance Coordinator rejected the
grievance, and stated:
Per DC-ADM 804, Inmate Grievance System Procedures Manual,
Section 1.A. 16- Any grievance issue that has been previously
addressed will not be re-addressed in a subsequent grievance. Any
concern with the previous grievance, previous grievance decision or
the staff member who rendered that decision must be addressed
through the appeal process outlined in Section 2 of this procedures
manual. Grievance #552111 was previously reviewed and addressed
(Doc. 21-2, at 88) (emphasis in original). Frye did not appeal this grievance.
Nine months later, on January 23, 2016, Frye filed Grievance Number 609090,
complaining of the same issues that were previously reviewed and addressed by the
prison staff. Frye grieved as follows:
I have a seizure disorder diagnosed by Fayette County Uniontown
Hospital[.] SCI Benner and SCI Somerset and SCI Pittsburgh and
Camp Hill [were] notified by me[.] [T]hey refused to get me to sign a
release paper for medical [to] get all my medical record from
Uniontown Hospital[.] I am seeking relief that medical get me to sign
release paper to get my medical records from Uniontown Hospital.
(Doc. 21-2, at 27). On February 11, 2016, Lori Sossong, R.N., acting Corrections
Healthcare Administrator, denied the grievance and stated:
Alexander Frye, I read your grievance and you state that you have
been diagnosed with a seizure disorder. Upon a thorough chart
review, I could not find where you have had a seizure and there is no
documentation that you have a seizure disorder. I understand that you
wish to have medical records from Uniontown Hospital sent here to
Benner. I noticed in March of 2015 you have grieved this issue of
seizures and medical records. Doug Bopp, CHCA at the time advised
you to sign up for sick call to speak with the practitioner to do so. You
did not do this. Once you do this then you can sign a release and the
records can be sent to us here at Benner. Until then, there is nothing
else to do for you about this issue. Your grievance is denied.
(Doc. 21-1, at 26). Frye failed to appeal this grievance.
Rather than comply with the directives of the prison grievance coordinators,
Frye chose to abandon his grievances. Frye failed to oppose defendant‟s motion,
and failed to present any response to defendant‟s argument that he failed to utilize
the DOC‟s Inmate Grievance System with respect to any claims against defendant
Doll. Notably, Frye failed to set forth any allegations that prison officials obstructed
his attempt to exhaust the administrative remedy process, or that his efforts to
utilize the administrative review process were impeded in any manner. Courts
have invariably held that affirmative misconduct by prison officials, designed to
impede or prevent an inmate‟s attempts to exhaust, may render administrative
remedies unavailable. See Todd v. Benning, 173 F. App‟x 980, 982-83 (3d Cir. 2006)
(expressing approval of the Eighth Circuit‟s holding in Miller v. Norris, 247 F.3d 736
(8th Cir. 2001) that administrative remedies were not available where prison
officials “purportedly prevented prisoner from employing the prison‟s grievance
system”). Examples of affirmative misconduct on the part of prison officials
include: (1) threatening a prisoner in an attempt to thwart the prisoner‟s attempts
to exhaust, see Harcum v. Shaffer, 2007 WL 4167161, at *5 (E.D. Pa. 2007) (finding
administrative remedies unavailable where prison officials threatened plaintiff with
“opposition to his future prerelease application, parole, or outside work detail if he
did not withdraw his grievance”), (2) refusing to provide appropriate grievance
forms in response to inmate inquiries, see Mitchell v. Horn, 318 F3d 523, 529 (3d Cir.
2003), (3) advising an inmate that his or her situation does not require a grievance,
see Brown v. Croak, 312 F.3d 109, 111 (3d Cir. 2002) (finding that administrative
remedies were unavailable to plaintiff who had been advised by prison official that
he must wait until the end of the prison‟s investigation before filing a grievance),
and (4) failing to file or respond to a prisoner‟s grievances, see Camp, 219 F.3d at
280-81 (finding that administrative remedies were unavailable where prison officials
refused to file plaintiff‟s grievances regarding their coworkers). There is no
indication, based upon the allegations of the complaint and review of the
Administrative Remedy Generalized Retrieval Information, that Frye was
prevented or hindered from pursing administrative remedies. In fact, during his
incarceration, Frye filed numerous grievances, which undermines any assertion
that he was obstructed from seeking administrative relief. It is clear that Frye failed
to exhaust his administrative remedies. Consequently, defendant‟s motion to
dismiss will be granted.
Leave to Amend
When a complaint fails to present a prima facie case of liability, district courts
must generally grant leave to amend before dismissing the complaint. See Grayson
v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver, 213 F.3d
113, 116-17 (3d Cir. 2000). Specifically, the Third Circuit Court of Appeals has
admonished that when a complaint is subject to dismissal for failure to state a claim,
courts should liberally grant leave to amend “unless such an amendment would be
inequitable or futile.” Phillips, 515 F.3d at 245 (citing Alston v. Parker, 363 F.3d 229,
235 (3d Cir. 2004)). For the reasons set forth above, and because Frye has failed to
oppose the motion to dismiss, the court concludes that granting leave to amend
would be futile.
Based on the foregoing, the unopposed motion (Doc. 20) to dismiss will be
granted. An appropriate order will issue.
/S/ CHRISTOPHER C. CONNER
Christopher C. Conner, Chief Judge
United States District Court
Middle District of Pennsylvania
August 10, 2017
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